National Quality Forum

One thing every Certified Legal Nurse Consultant knows is that a simple apology by a healthcare provider often goes a long way in disarming anger in patients. But what if a doctor or representative of a healthcare facility were to apologize to a victim of medical malpractice? Do you think that might reduce the number of lawsuits and the associated costs of litigation? It actually does (and that saves us all money)!

“Sorry Works!,” a self-professed “advocacy organization for disclosure, apology (when appropriate) and upfront compensation (when necessary) after adverse medical events” has been successfully implementing laws in 34 states which allow doctors and/or facilities and their representatives to make apologies for medical errors. Those same laws make those apology statements inadmissible in court in order to encourage settlements. Admitting a mistake to keep someone from suing you seems a little odd, but experience and research proves it actually works.

Providers disclosing medical errors to patients and, at the same or a later time, offering a sincere apology, and often compensation, results in decreased numbers of lawsuits. The New York Times reported that as little as thirty percent of medical errors are disclosed to the patients (or their survivors). It is often the concealment of the error and an accompanying unrepentant attitude that feeds the injured party’s anger and results in the filing of lawsuits.

The “apology” program proved successful at the University of Michigan Health System – lawsuits were reduced 68% over the period tracked and at the University of Illinois – lawsuits were reduced almost 50%. Both facilities also experienced drops in legal-related expenses (including settlements). The National Quality Forum in 2009 published an updated practice statement of safe practices that included standards for disclosure of unanticipated outcomes. In a terrific review article, the New England Journal of Medicine has discussed the effectiveness of such disclosures and even the Joint Commission, as far back as 2001 (when they were still JCAHO) adopted the first standards for disclosure. Since then, similar standards and guidelines have been adopted by organizations and facilities across the country. (Here’s a bibliography of articles on disclosure from the Joint Commission.)

So why aren’t more facilities allowing doctors to apologize in order to deter litigation? Part of it is reticence. Would it surprise you to know that according to the Journal of the American Medical Association doctors are either unwilling or afraid to apologize? Insurance companies and facilities still prefer to “deny and defend.” Also defense law firms, whose livelihoods depend on continued and protracted litigation, have no incentive to quickly settle a potential lawsuit.

As a legal nurse consultant working with a case involving an injured plaintiff you will want to discover whether a defendant facility had a disclosure policy in place and whether or not that policy was followed. As a defense CLNC^® consultant you may wish to do the same. It may also be time to involve your facility in this type of program as a cost-savings measure.

Here’s an interesting thought, if these types of programs work so well in medical-related cases, what other types of cases might be able to use an apology system? Perhaps you might see this in toxic torts (chemical spills) or products liability (medical-device) cases? How about simple personal injury cases? The possibilities are endless.

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P.S. Comment and share your opinion on “Sorry Works.”

Every Certified Legal Nurse Consultant knows that after a patient has a stroke, the care they receive in the first 3-4 hours is the most crucial. The type of stroke influences the treatment so proper recognition and diagnosis are essential. Despite this knowledge, the National Quality Forum (NQF) recently rejected a proposed guideline that would have called for a CT scan within 45 minutes of a patient presenting to the ED. Why is this important? The NQF sets the medical guidelines that are used by the Centers for Medicare & Medicaid Services (CMS) to evaluate (and reimburse) hospitals. So, with no reimbursement, the likelihood of a patient getting a CT scan drops pretty dramatically.

Hospitals receiving Medicare funding will soon be reporting how well they comply with guidelines for stroke treatment, even though one of the most important diagnostic tools for stroke (a CT scan) was not done.

The American Association of Neurology pushed strongly for the guideline and the American Stroke Association’s (ASA) guidelines for stroke care include the recommended 45-minute standard for scans. According to the ASA nearly 700,000 Americans incur a stroke annually, with 170,000 fatalities. In other words, an American suffers a stroke every 45 seconds and every 3 minutes, one of these stroke victims dies, so it’s very likely you’ll run into a case involving a stroke at some point in your legal nurse consulting career. As a CLNC^® consultant working on stroke cases, you should establish whether the standards of care for diagnosing and treating stroke were adhered to by the potential defendant hospital and healthcare providers. Establish not only whether or not a CT scan was done, but how timely it was ordered, completed and interpreted. Despite NQF, who looks like they had a stroke (not a stroke of genius) reputable testifying experts will be testifying in medical malpractice cases that a CT scan within 45 minutes of presenting to the ED is the standard of care.

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P.S.     Comment and share your vote on NQF’s decision.

Whether you are screening medical malpractice cases for plaintiff or defense, as a Certified Legal Nurse Consultant, you should be on the lookout for those obvious meritorious cases. When you see them, the red flags go up as long as there is significant injury or death. For example, maternal death gets everyone’s attention. The plaintiff CLNC^® consultant’s response is – this is one the plaintiff attorney should absolutely represent. The defense CLNC^® consultant’s initial response is – the defense should settle and settle fast.

Plaintiff attorneys usually want to see significant injuries, even in obvious cases of medical malpractice. They have to weigh the cost of litigation against the return. They must consider if it makes sense. They don’t want to spend $150,000 to win back $250,000.

The Centers for Medicare and Medicaid Services (CMS) recently made it so easy for plaintiff attorneys to successfully litigate 13 types of medical malpractice cases that plaintiff attorneys may be more willing to take on these 13, even if the damages do not meet their usual expected criteria.

To start at the beginning, the National Quality Forum (NQF) endorses a list of 27 serious, preventable and reportable “Never Events.” CMS, issued a ruling last year, effective October 1, 2008: CMS would no longer reimburse for 10 selected “Never Events” – events that should never happen and which are clearly caused by the hospital and/or its staff. Then, effective January 15, 2009, CMS issued another ruling adding three additional, surgery-related “Never Events.” In other words, CMS is trying to save lives by saving money.

Cases involving “Never Events” account, according to AON, for a large percentage (12.2% or more) of medical malpractice claims and will be difficult to defend and easy for the plaintiff attorney to settle fast, thus reducing their litigation costs. Insurance companies will fear taking these cases to trial and losing at great expense. They can settle out of court cheaper.

“Never Eventland” provides the perfect playground for a law firm’s new, young and inexperienced associate attorneys to practice on.

Add these 13 CMS “Never Events” to your “Plaintiff Alert Signal” list.

1. Unintentional retention of a foreign object after surgery.
2. Air embolism.
3. Blood incompatibility.
4. Pressure ulcers (Stages III and IV).
5. Hospital-acquired injuries from falls and certain traumas (fracture, dislocation, intracranial injury, crushing injury, burns and/or electric shocks).
6. Manifestations of poor glycemic control.
7. Catheter-associated urinary tract infections (UTI).
8. Vascular catheter-associated infection.
9. Deep vein thrombosis (DVT) or pulmonary embolism following total knee replacement and hip replacement procedures.
10. Surgical-site infections following certain orthopedic procedures, mediastinitis following coronary artery bypass graft (CABG) and/or following bariatric surgery for obesity.
11. Surgery on the wrong body part.
12. Surgery on the wrong patient.
13. Wrong surgery performed on a patient.

Educate your attorney-clients about “Never Events.” Offer to do a 20-minute presentation for all of the attorneys in the law firm. Even with attorneys, small wins are good.

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